Comment

Tex. Penal Code § 32.51(b) provides that this offense can be committed in three different ways. The following instructions address the most commonly charged method under section 32.51(b)(1).

Culpable Mental State. The offense requires the intent to harm or defraud another. Thus it prescribes a culpable mental state, and section 6.02(b) does not apply. Consequently, the only culpable mental state required is the prescribed intent to harm or defraud another.

Defining “Item of Identifying Information.” Section 32.51(b)(1) defines the offense as taking any of the prescribed actions with an item of identifying information. Further, under section 32.51(c), the offense is graded by the number of items of identifying information involved in the defendant’s action.

“Identifying information” is defined in Tex. Penal Code § 32.51(a)(1). “Item of identifying information,” however, is not defined.

In Cortez v. State, 469 S.W.3d 593 (Tex. Crim. App. 2015), the court concluded the statutory language was ambiguous enough to justify use of extra-textual sources to construe it:

Cortez, 469 S.W.3d at 598–99. After consulting extra-textual sources, the court announced:

Cortez, 469 S.W.3d at 602.

Cortez held specifically that the trial court did not err in failing in the instructions to define an item of identifying information as a thing containing a group of information. Cortez did not address whether a trial court should or could define the term as the case held the law intended it.

It is hard to understand how statutory language could be unclear enough to permit an appellate court to use extra-textual sources to define it but clear enough for juries to apply it without a definition.

Nevertheless, the Committee decided that, given the court of criminal appeals’ reticence to endorse the use of nonstatutory definitions in jury instructions, the term item of identifying information should not be defined.

If such a definition were given, however, Cortez suggests the critical term might be defined as follows: